(dissenting) — I dissent. The state, claiming an escheat of the property of Harry J. McDonald, deceased, appeals from an order of the probate court awarding the respondent, Russell W. Swanson, two savings bank accounts and certain postal certificates, based on a finding that there had been a gift causa mortis.
My examination of the short record convinces me that Harry J. McDonald, who' died intestate, intended that the respondent, Russell W. Swanson, who had assisted him in numerous ways and was his friend, should have all of his property after his death. This included a small tract of land on which McDonald made his home (appraised at $250) and the property claimed as a gift.
The only witnesses, other than the respondent1, so testified explicitly. The substance of the testimony of those witnesses, in their own words, is as follows:
*458John Patton: McDonald had said that “when he [McDonald] was through with what he had it would be turned over to Russ [Swanson].”
Robert McCallum: McDonald had said: “ ‘I’m going to leave my stuff, money and things, to him [Swanson].’ ” The witness suggested that he ought to make a will; to this McDonald agreed, but as the witness said: “He never did that.”
Robert E. Rowe: McDonald had said to Swanson in the presence of the witness: “ ‘if anything happens to me, I want you to have all I have.’ ”
There is no support, in this testimony, for a finding of any intent to make a present transfer of certain personal property. It is consistent only with an intent to make a gift or transfer to take effect upon death of all his property, real and personal.
There was no will; neither was there any evidence to establish a contract to make a will.
If it be assumed that this evidence proved an intent to make a gift causa mortis, i.e., a gift in praesenti revocable upon the recovery of the donor from his then existing illness, it was still necessary to prove delivery.
Delivery, with the present intention to make a gift (though revocable on the recovery of the donor from his then illness) is the sine qua non of a gift causa mortis. Jackson v. Lamar (1912), 67 Wash. 385, 121 Pac. 857; Newsome v. Allen (1915), 86 Wash. 678, 682, 151 Pac. 111.
The Newsome case quotes from the Jackson case as follows:
“ ‘But the courts have never departed from their vigilance in holding that something more is required to constitute a gift, either inter vivos, or causa mortis, than the expression of an intent or purpose to give. Evidence of such intent is admissible to prove the act, but it does not constitute the act, and delivery either actual or constructive, is as essential today as it ever was. The donor must not only signify his purpose to give, but he must deliver, and as the law does not presume that an owner has voluntarily parted with his property, he who asserts title by gift must prove it by evi*459dence that is clear and convincing, strong and satisfactory.
In this case, all that the trial court could know, apart from the testimony of Russell Swanson, was that Swanson had possession, after the death of Harry J. McDonald, of McDonald’s two savings bank books and his postal savings certificates. When Swanson had obtained them, and under what circumstances, was established only by his testimony which was, of course, subject to the limitation of the “dead man statute” (RCW 5.60.030), heretofore set forth in note 1, supra.
In support of the theory of a gift causa mortis, Swanson testified that he found these articles in a can, among some fifty cans in McDonald’s home, and brought them to the nursing home where McDonald was being cared for (from this the trier of the facts is asked to infer that McDonald told Swanson where the pass books and postal certificates were and asked Swanson to bring them to him); that he handed them to McDonald, who handed them back to him; and he retained possession of them until McDonald’s death (from this the trier of the facts is asked to infer that the delivery by McDonald back to Swanson of the bank books and postal certificates was a gift in praesenti, revocable by the donor in the event of his recovery).
To strengthen these inferences, by showing the intent of the decedent to make such a gift, Swanson offered the testimony of the three witnesses, which we have heretofore summarized and which had no connection with the actual delivery of the articles, and did no more, as I view it, than indicate a desire by McDonald that Swanson should have all McDonald’s property, including his home, upon his death.
Other circumstances should be considered in determining whether McDonald made a gift to Swanson. The conduct of Swanson, following the death of McDonald on December 6, 1956, was not consistent with the present claim of a gift causa mortis. Swanson signed a “Preliminary Statement” for the Inheritance Tax Division on December 17, 1956, in which he answered “no” to the question:
*460“Did decedent at any time prior to death make transfer of a material part of his property to any person, direct, in trust or otherwise, without full consideration in money or money’s worth? ...”
Two months later, February 12, 1957, Swanson signed a “Notice of Escheat Property,” advising the Inheritance Tax Division that the estate of decedent “constitutes escheat property.”
Swanson apparently made no claim that a gift had been made to him until June 17, 1957 (just two days prior to the expiration of the time for filing claims), and then the claim of a gift was most equivocal. He first asserted the existence of a contract, whereby McDonald had agreed, in consideration of his (Swanson’s) services to him, to provide “by will or other instrument” that all of his property would be left to and become the property of Swanson upon McDonald’s death. (If this claim were sustained, Swanson would receive all of the estate, including the home.)
As a second string to his bow, in the claim filed June 17, 1957, Swanson urged there was a valid gift causa mortis of the savings bank accounts and the postal savings certificates. (Recognizing that real property could not be transferred by such a gift.)
Finally, he urged that if there was no contract and no gift causa mortis, then the value of the services rendered by him to McDonald were of the fair and reasonable value of $8,500. (The appraised value of the estate was $8,548.96.)
The trial court concluded that there was no evidence of any contract and, after indicating that the value of any services rendered by respondent was far less than $8,500, concluded that Swanson’s claim for compensation must be denied. On these conclusions we all seem to be in accord with the trial court.
I find no evidence to support the trial court’s finding that there was a gift causa mortis to Swanson. Certainly, there is not the clear and convincing, strong and satisfactory evidence, which is required of one who asserts title to a gift. In re Gallinger’s Estate (1948), 31 Wn. (2d) 823, 199 P. (2d) 575; Jackson v. Lamar, supra.
*461I would, therefore, set aside the order of the trial court, appealed from, which awarded the postal savings certificates and the savings bank accounts to Russell Swanson.
Donworth, Weaver, and Ott, JJ., concur with Hill, J.
Respondent was barred by the so-called “dead man statute” from testifying as to statements made to him by McDonald. That statute (RCW 5.60.030) is as follows:
“No person offered as a witness shall be excluded from giving evidence by reason of his interest in the event of the action, as a party thereto or otherwise, but such interest may be shown to affect his credibility: Provided, however, That in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, through or from any deceased person, or as the guardian or conservator of the estate of any insane person, or of any minor under the age of fourteen years, then a party in interest or to the record, shall not be admitted to testify in his own behalf as to any transaction had by him with, or any statement made to him, or in his presence, by any such deceased or insane person, or by any such minor under the age of fourteen years: Provided further, That this exclusion shall not apply to parties of record who sue or defend in a representative or fiduciary capacity, and have no other or further interest in the action.”